California Shipbuilding Corp. v. Industrial Accident Commission

Respondent Frank Cornier sustained compensable injuries while in the employ of petitioner California Shipbuilding Corporation. He claimed and respondent commission awarded the increased compensation provided by sec *279 tion 4553 of the Labor Code for an employe injured by reason of the serious and wilful misconduct of an employer. To sustain the extra compensation, it must be established that the employer’s misconduct is both serious and wilful (27 Cal.Jur. 441, § 118) and, where the employer is a corporation, such misconduct, before it can be attributed to the corporation, must be proved to be that of “an executive, managing officer, or general superintendent thereof” (Lab. Code, § 4553).

The commission found that “Said injury was proximately caused by reason of the serious and wilful misconduct of the employer, by and through its managing officers, in violation of Labor Code Sections 6400-6404 inclusive, in that said employer cut a hole in the deck of a ship, and: (a) Failed to have proper or any lights illuminating or making visible the said hole and the deck immediately adjacent thereto; (b) Failed to guard the said hole with proper or sufficient guard rails; (c) Failed to…

I dissent.

It is difficult to ascertain whether the majority opinion holds that the evidence is insufficient to establish serious and wilful misconduct or that such misconduct, although established, was not shown to be chargeable to a managing officer. In either event I am convinced the evidence is sufficient. Moreover, I wish to point out that the condemnation of the finding of such misconduct, for failure to designate the managing officer chargeable therewith, is erroneous and contrary to authority.

Turning first to the evidence, my review of the record reveals that the facts are much stronger in support of the commission’s finding than those presented in the majority opinion. It must be remembered that if there is any evidence to support the findings of the commission its award must be affirmed, and only the evidence favorable to that result need be considered. Conflicts may be ignored.

The record discloses that a hole was cut in the deck of the *284 ship immediately over the galley, to be used in placing a stove in the galley. The employee, Cornier, was working on the graveyard shift, that is, from 12:30 a. m. on. There is abundant evidence that the area around the hole was…